Archive for December, 2012

Facts in Oral Argument at the Texas Supreme Court

Monday, December 17th, 2012

Last week, Texas Supreme Court Justice Debra Lehrmann spoke in Dallas about (1) how the court decides whether to grant or deny review; (2) common mistakes seen in appellate petitions and briefs; and (3) oral argument at the court. Because Justice Lehrmann had so many great insights, I am dedicating a blog post to each of these three topics.  Here is the THIRD of the three blog posts:

Justice Lehrmann suggested that, at a supreme court oral argument, advocates should not address the facts of the case at all (except when necessary to respond to a justice’s question).  If the supreme court selects a case for oral argument, the justices have already spent months familiarizing themselves with the case.  The justices have read the petition for review and response and have decided that the case merits further study.  The justices have requested and read full briefs on the merits from both sides.  The justices have discussed the case at multiple court conferences.  After having spent months preparing to hear an oral argument, the justices do not appreciate being addressed as if they had done little or no preparation.

Common Mistakes Seen in Appellate Petitions and Briefs

Sunday, December 16th, 2012

Last week, Texas Supreme Court Justice Debra Lehrmann spoke in Dallas about (1) how the court decides whether to grant or deny review; (2) common mistakes seen in appellate petitions and briefs; and (3) oral argument at the court.  Because Justice Lehrmann had so many great insights, I am dedicating a blog post to each of these three topics.  Here is the SECOND of the three blog posts:

As for common mistakes seen in appellate petitions and briefs, Justice Lehrmann addressed seven.

The first common mistake is including a statement of facts that has too much or too little detail.  A statement of facts should tell a good story and simply cannot do so if it has too much or too little detail.

The second common mistake is including too few case citations.  After all, appellate review largely revolves around analysis of legal precedent.

The third common mistake, applicable only to practice before the supreme court, is over-reliance on lower court holdings.  The supreme court relies primarily on its own precedent and, consequently, prefers that advocates do the same.

The fourth common mistake is use of hyperbole.  It is simply not persuasive to argue that the world will end if the court rules a certain way.  An example of such a blunder: “The [court of appeals] holding will unleash havoc and disorder upon the entire system of justice in Texas.”  Justice Lehrmann reasoned: “Arguments that read as if the outcome of the case threatens to harken the apocalypse achieve the opposite result of what they want to achieve.”

The fifth common mistake is poor proofreading.  Typographical errors and improper punctuation detract from an otherwise strong argument.  It is amazing that many documents filed with the supreme court do not appear to have been proofread.

The sixth common mistake is failing to address arguments which your opponent has made or is likely to make.  While addressing counter-arguments should not be the primary focus of your filing, it is unwise to simply ignore them.

The seventh common mistake is failing to include sufficient record citations.  Stating a fact without citing to the record will likely prompt a reader to disregard that fact. It is impossible to include too many record citations.  When stating a fact, don’t just cite to one instance in the record which supports the fact; cite to every such instance in the record.  “Doing so may just tip the scales in your favor.”

How the Texas Supreme Court Decides Whether to Grant or Deny Review

Saturday, December 15th, 2012

Last week, Texas Supreme Court Justice Debra Lehrmann spoke in Dallas about (1) how the court decides whether to grant or deny review; (2) common mistakes seen in appellate petitions and briefs; and (3) oral argument at the court.  Because Justice Lehrmann had so many great insights, I am dedicating a blog post to each of these three topics.  Here is the FIRST of the three blog posts:

As for how the supreme decides whether to grant or deny petitions for review, Justice Lehrmann emphasized that the supreme court is not a court of error correction.  The fact that the trial court or the court of appeals made an error (even an egregious one) is simply not a basis for the supreme court to grant review.  To the contrary, Justice Lehrmann noted that the “Court only takes cases that will significantly impact the jurisprudence of the state.”  As such, review is often denied simply because the issue is not sufficiently significant to the state’s jurisprudence.  If the issue is significant to the state’s jurisprudence, but the facts of the case do not make the case ideal for addressing the issue, the court will likely deny review and wait for a case with facts that would make for a better presentation of the issue.  Interestingly, Justice Lehrmann indicated that, even if the petition presents an issue significant to the state’s jurisprudence and the case has ideal facts for addressing that issue, the court will likely deny review if the petition and/or the brief on the merits is not well written.